Does America Need a Digital Bill of Rights?

President Barack Obama gestures as he speaks in San Jose, Calif. , Friday, June 7, 2013.

Where are things right now in the National Security Agency scandal? We know about Verizon providing call data. We know about the secret Prism program that funnels data from large tech companies to the government. We know numerous major tech companies are involved. We know also that the program was reapproved by Congress recently, and has consistently taken place with judicial oversight. This is not just an Obama administration policy, but a fact of our government in all branches—and it has been since 2007. By pointing this out, I don’t mean to take responsibility away from President Barack Obama, who is deserving of being singled out because during both his campaigns he talked about the need for openness in government. I mean only to indicate the scope of the issue. And the scope is massive; the range of governmental officials—elected and professional; liberal, conservative, and libertarian; judge, legislator, and executive—is as wide as can be.

Charles Shanor, writing in the New York Times, takes this broad involvement as a good sign. With so many different members of the government involved, can what’s happening behind closed doors really be so bad? “I think I will take my chances,” he writes, “and trust the three branches of government involved in the Verizon request to look out for my interest.” Now, for myself—while it is unrealistic to think that we’ll never have to trust and “take our chances” to some extent—I don’t find this a terribly rousing defense. Even if you do trust the government in general, or trust this administration in particular, it’s exactly this kind of consideration that the Bill of Rights was supposed to render moot. It sounds a bit too much like the argument that monarchy is fine for us because we have a good king—it may even be true, but that doesn’t make it a reasonable way to run things.

Strangely missing from this discussion is how much we’re taking our chances and trusting, not the government, but corporations. The concern is with government getting this data; data that corporations already have. We ask whether we can trust the government not to act against our civil liberties in using this data—meanwhile, we ask little about whether we can trust corporations not to act against us, even though we have no civil liberties to protect us from corporations. We ask what the right balance is in the supposed “trade off” between rights to privacy and the public good, and yet that privacy has long been gone in our relationship to corporations, and it hasn’t even been traded for a public good, but for merely private profits.

What was the point of civil liberties to begin with, if not to limit the behavior of those with the power to watch over and take advantage of us? Once, only governments fit this description, but no longer—and, in this case, it is only because we have already given away our privacy for corporate profits do we have reason to fear that the government may take advantage of our data for its ends as well.

As corporations take over ever more functions which only government was capable of in the past, while remaining free of the protective limits placed on the government, systems of control have shifted as well. Governments turn to take advantage of corporations’ unrestrained power to do what they cannot; those seeking to influence or restrict the freedom of the people turn to board rooms rather than governmental offices to get things done.

We see this in the NSA scandal, of course. We see this in Citizens United as well—propagandistic efforts unacceptable through governmental bodies can be pursued through corporations. We see this in the entire system we have of lobbying and election funding. Agendas that can’t be pursued by democratic means can be brought to the table through direct action by corporations. And certainly we see this in the way we, as consumers, are unknowingly complicit in the politics that our purchases fund. Do you support liberal causes and candidates? You do when you use Google, shop at Costco, or buy Starbucks. Do you support conservative causes and candidates? You do when you use Georgia-Pacific products (Angel Soft, Quilted Northern, Brawny, Sparkle, Mardi Gras, Dixie Cups, et al.) shop at Wal-Mart, or go to Wendy’s.

The real issue here, the root of the problem, is not the Obama administration. Or the Bush administration, which began these efforts. Or the judiciary, or the legislature. The root of the problem is that we have allowed corporations, which have become more like governments than like persons, to take advantage of the liberties given to citizens rather than being subjected to the kinds of limitations that protect citizens. Government has only taken advantage of this failure as a convenient work-around—government is certainly complicit, and has compounded the issue, but it is not its source.

It could be argued that we need a new Bill of Rights; one to protect us from private power rather than public power. Ari Melber, Woodrow Hartzog, and Evan Selinger have recently proposed “People’s Terms of Service Contract,” which is a good start. But there’s much more to be done if we’re going to regain the protections our founding documents tried to give us against the only power then existing able to infringe upon them.

What a New Bill of Rights would mean, how it would work, and what it would include are huge, bewildering questions, but we’re going to have to start the conversation soon. I don’t expect this little article to get it going, but as technology continues to develop, private powers will gain ever more abilities to observe, influence, and control, and the need for new rights against private powers will eventually be undeniable, unless we have truly and entirely lost our founding vision of life, liberty, and the pursuit of happiness.

About Speakeasy

Speakeasy is a blog covering media, entertainment, celebrity and the arts. The publication is produced by Barbara Chai and Jonathan Welsh with contributions from the Wall Street Journal staff and others. Write to us at speakeasy@wsj.com or follow us on Twitter at @WSJSpeakeasy or individually @barbarachai.